FIRST PRINCIPLESJurisdiction: Of U.S. Court of Appeals for the Armed Forces

2020 (October Term)

United States v. Stanton, 80 M.J. 415 (although the CAAF does not have jurisdiction to disturb administrative discharges, in this case, appellant has not asked it to take any action with respect to his administrative discharge; rather, because appellant requests only that the CAAF set aside the finding of guilt on a larceny specification and the sentence of no punishment that the CCA has affirmed, it expressly has jurisdiction under Article 67(c), UCMJ; and in exercising such jurisdiction, the CAAF has previously considered precisely the kind of argument that appellant now makes, namely, that a convening authority breached a term of a pretrial agreement; as such, appellant’s administrative discharge during the pendency of the court-martial proceedings did not remove him from the jurisdiction of the court-martial). 

2019 (October Term)

United States v. Wall, 79 M.J. 456 (the CAAF has a duty to review the record in all cases reviewed by a CCA in which the accused’s petition establishes good cause; the CAAF may act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the CCA). 

(where the CCA set aside a sentence as incorrect in law to effectuate the possibility of a rehearing on findings and sentence, the CAAF had jurisdiction over the case and could determine the scope of the CCA’s authority with respect to the remand). 

2017 (October Term)

United States v. Jacobsen, 77 M.J. 81 (military courts, as Article I courts, are courts of special jurisdiction and their authority to act is conferred and strictly confined by statute). 

2016 (October Term)

Randolph v. HV, 76 M.J. 27 (the CAAF lacks jurisdiction under Article 6b, UCMJ, to review a decision of the CCA that granted an alleged rape victim extraordinary relief in the nature of a writ of mandamus directing the military judge to protect certain portions of the victim’s mental health records from disclosure to the accused for use in his defense on the grounds that the records were subject to the psychotherapist-patient privilege under MRE 513; Article 6b expressly provides that enumerated victims’ rights can be enforced through a writ of mandamus obtained at a CCA, but there is no mention of additional appellate rights for the accused, or of a grant of jurisdiction to the CAAF; the victim protections afforded by Article 6b expressly provide for enforcement by the CCA, and nothing further; it makes no sense to allow the accused to utilize Article 6b, a victim’s statute, to go where the victim may not). 

(the legislative history of Article 6b indicates no congressional intent to provide for review at the CAAF or beyond; Article 6b(e) is a clear and unambiguous grant of limited jurisdiction to the CCAs to consider petitions by alleged victims for mandamus as set out therein; as Article 6b is meant to confer rights on victims, not the accused, it would violate congressional intent for the CAAF to review Article 6b cases upon petition by the accused but not the victim). 

(although under the All Writs Act, the CAAF has authority to act in aid of its existing jurisdiction when the harm alleged has the potential to directly affect the findings and sentence, because Article 6b(e) is a unique grant of statutory authority that limits appellate jurisdiction to the CCA, the CAAF cannot use that article and the All Writs Act to artificially extend its existing statutory jurisdiction). 

(Article 6b(e) is a limited grant of CCA review to enforce certain enumerated victims’ rights; the statute cannot be stretched by an accused, even in tandem with Article 67(a)(3) or the All Writs Act, to authorize review by the CAAF).    

2015 (September Term)

United States v. LaBella, 75 M.J. 52 (an appellant must file his petition for review at the CAAF within sixty days from the date he is notified of the decision of the CCA, or the date on which a copy of that decision, after being served on appellate counsel of record for the accused (if any), is deposited in the United States mails for delivery by first class certified mail to the accused, whichever is earlier; if during that sixty-day period, an appellant files a motion for reconsideration at the CCA, there is no CCA decision for the CAAF to review; in such a case, the sixty-day statutory filing period at the CAAF begins to run anew, following the CCA's disposition of the motion; in this case, where appellant failed to file either a petition for review at the CAAF or a petition for reconsideration at the CCA within the statutory filing period, his conviction became final as to the legality of the proceedings at the end of the sixty-day filing period; therefore, the CCA lacked jurisdiction to grant appellant's petition for reconsideration out of time and, consequently, the CAAF lacked jurisdiction to consider appellant's petition for review).

2014 (September Term)

United States v. Arness, 74 M.J. 441 (where the CCA had no jurisdiction to consider a writ, the CAAF is without jurisdiction to hear a writ-appeal because the CAAF’s jurisdiction is predicated on the jurisdiction of the CCA).   

2013 (September Term)

United States v. Wilson, 73 M.J. 404 (under Article 67(a)(2), UCMJ, the CAAF shall review all cases reviewed by a CCA which the JAG orders sent to it for review; in this case, where the CCA answered in the affirmative a specified issue as to whether Article 12, UCMJ, applied to a military member serving a court-martial sentence to confinement in a civilian county jail in Georgia and the JAG certified that same issue to the CAAF, the CAAF had statutory jurisdiction to review the CCA’s decision under Article 67(a)(2), UCMJ; there was a justiciable case and controversy before the CAAF, where the CCA has rendered a final action in the case by deciding the Article 12 issue, a certificate for review was issued by the JAG, and the applicability of the Article 12 issue to appellee was interwoven with the resolution of his complaints about confinement conditions).   

2012 (September Term)

Center for Constitutional Rights v. United States, 72 M.J. 126 (the CAAF, and courts-martial in general, being creatures of Congress created under the Article I power to regulate the armed forces, must exercise their jurisdiction in strict compliance with authorizing statutes; as the Supreme Court held in Clinton v. Goldsmith, 526 US 529 (1999), when Congress exercised its power to govern and regulate the Armed Forces by establishing the CAAF, it confined the court’s jurisdiction to the review of specified sentences imposed by courts-martial; the CAAF has the power to act only with respect to the findings and sentence as approved by the court-martial’s convening authority and as affirmed or set aside as incorrect in law by the Court of Criminal Appeals). 

(the CAAF is empowered to issue extraordinary writs under the All Writs Act; that Act provides that all courts established by act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law; the express terms of the Act confine the power of the CAAF to issuing process in aid of its existing statutory jurisdiction; the Act does not enlarge that jurisdiction; as noted by the Supreme Court, the CAAF is not given authority, by the All Writs Act or otherwise, to oversee all matters arguably related to military justice; the Act does not increase the areas of the CAAF’s jurisdiction beyond the limitations set out in Article 67, UCMJ). 

(the CAAF was without jurisdiction over news organizations’ petitions for a writ of mandamus and/or prohibition to compel a court-martial to grant public access to documents filed in the court and to order the military judge to reconstitute past RCM 802 conferences and to conduct all future such conferences in a manner not inconsistent with the First Amendment right of public access; Congress confined the CAAF’s power to act only with respect to the findings and sentence as approved by the court-martial’s convening authority and as affirmed or set aside as incorrect in law by the courts of criminal appeals; the All Writs Act did not enlarge that jurisdiction; what the CAAF is asked to adjudicate amounts to a civil action, maintained by persons who are strangers to the court-martial, asking for relief - expedited access to certain documents - that has no bearing on any findings and sentence that may eventually be adjudged by the court-martial). 

2008 (September Term)

United States v. Rodriguez, 67 M.J. 110 (Article 67(b), UCMJ, provides that an accused may petition the CAAF for review of a decision of a CCA within sixty days from the earlier of the date upon which the accused is actually notified or the date upon which he or she is constructively notified of the decision of the CCA; this congressionally-created statutory period within which an accused may file a petition for grant of review is jurisdictional). 

(where appellant filed his petition for grant of review at the CAAF outside the sixty-day statutory period for the filing of such petitions, the CAAF did not have authority to entertain the petition for review because the sixty-day period was jurisdictional and could not be waived). 

(where a time limitation for an appeal is derived from a statute, the taking of an appeal within the prescribed time is mandatory and jurisdictional; statute-based rules of limitation are distinguished from those having their origin in court-created rules; there is jurisdictional significance in the fact that a time limitation is set forth in a statute because only Congress may determine a lower federal court’s subject-matter jurisdiction; in contrast, the rule-based time limit may be waived because the procedural rules adopted by a court for the orderly transaction of its business are not jurisdictional and can be relaxed by the court in the exercise of its discretion; an important distinction between the jurisdictional statute-based limitations and those created within a court’s internal rules is that the courts have no authority to create equitable exceptions to jurisdictional requirements). 

(the entire system of military justice is a creature of statute, enacted by Congress pursuant to the express constitutional grant of power to make Rules for the Government and Regulation of the land and naval Forces; in Articles 141 through 146, UCMJ, Congress provided the source authority for the existence of the CAAF; the CAAF’s authority or subject matter jurisdiction is defined by Article 67, UCMJ). 

(under the plain language of Article 67(b), UCMJ, the provision governing petitions for review of CCA decisions, an appellant may file a petition for grant of review with the CAAF, and, if he or she chooses to do so, it must be done within the sixty-day time limitation; nothing within Article 67(b)’s statute-based time limitation is permissive and there is no indication that the CAAF can waive the limitation for equitable reasons). 

(the legislative history of Article 67(b), UCMJ, reflects that Congress intended the sixty-day appeal period to the CAAF to be a statute–based limitation and mandatory; only the opportunity to petition for review is permissive; the time within which to do so is not; any other construction of the relationship between opportunity to petition and the time within which to file is inconsistent with the expressed congressional desire to achieve finality; if the time limitation is triggered and an accused does not act, Congress intended the matter to end). 

(the opportunity to petition the CAAF lapses or expires by statute when the sixty-day statute-based limitation is not met, and the sixty-day limitation is jurisdictional and mandatory; relief from that time limitation does not rest in the discretion of the court; to the extent that US v. Tamez (63 MJ 201 (2006)) and earlier cases of the court are inconsistent with this holding, they are overruled).  

2008 (Transition)

Denedo v. United States, 66 M.J. 114 (although judicial review of immigration proceedings, including any use therein of a court-martial conviction, is outside the jurisdiction of the CAAF, the providence of a guilty plea at a court-martial is subject to its review). 


(although military appellate courts are among those empowered to issue extraordinary writs under the All Writs Act, the Act confines a court to issuance of process in aid of its existing statutory jurisdiction and does not enlarge that jurisdiction). 


(the CAAF is not given authority, by the All Writs Act or otherwise, to oversee all matters arguably related to military justice, or to act as a plenary administrator even of criminal judgments it has affirmed; there is no source of continuing jurisdiction for the CAAF over all actions administering sentences that it at one time had the power to review). 

United States v. Lopez de Victoria, 66 M.J. 67 (the CAAF, like all federal courts, is a court of limited jurisdiction; that jurisdiction is conferred ultimately by the Constitution, and immediately by statute; however, this principle does not mean that the CAAF’s jurisdiction is to be determined by teasing out a particular provision of a statute and reading it apart from the whole; since the beginning of jurisprudence under the UCMJ, the CAAF has read the statutes governing its jurisdiction as an integrated whole, with the purpose of carrying out the intent of Congress in enacting them; the CAAF believes it axiomatic that Article 67 must be interpreted in light of the overall jurisdictional concept intended by the Congress, and not through the selective narrow reading of individual sentences within the article). 


(the CAAF has statutory authority under Article 67(a), UCMJ, to exercise jurisdiction over decisions of the courts of criminal appeals rendered pursuant to Article 62, UCMJ). 



United States v. Tamez
, 63 M.J. 201 (jurisdiction is the power of a court to try and determine a case and to render a valid judgment; the time limits in Article 67, UCMJ, for filing a petition for review with CAAF are not jurisdictional).

(CAAF has consistently permitted appellants to file petitions for grant of review out of time for good cause shown; such a practice is consistent with Congress’s intent that servicemembers have the opportunity to obtain appellate review in an independent civilian court; were the sixty-day timeline jurisdictional, an appellant might be without appellate recourse in CAAF regarding claims such as ineffectiveness of counsel or complaints under Article 13, UCMJ).


United States v. Riley, 58 MJ 305 (the timely filing of a petition for review vests jurisdiction in CAAF and divests the CCA of jurisdiction to reconsider its decision; CAAF may, however, return jurisdiction to the lower court by a remand).



United States v. White, 54 MJ 469 (Court of Appeals for the Armed Forces has jurisdiction under Article 67(c), UCMJ, to determine on direct appeal if the adjudged and approved sentence is being executed in a manner that offends the Eight Amendment or Article 55, UCMJ; Article 67(c) grants the authority to ensure that the severity of the adjudged and approved sentence has not been unlawfully increased by prison officials, and to ensure that the sentence is executed in a manner consistent with Article 55, UCMJ, and the Constitution).



Steele v. Van Riper,  50 MJ 89 (issuance of an administrative discharge after trial does not negate the power of the Court of Appeals for the Armed Forces to act on the findings and sentence).

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